FICTIONS, LIES, AND THE AUTHORITY O F L AW
S T E V E N D. S M I T H
University of Notre Dame Press Notre Dame, Indiana
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CONTENTS
Acknowledgments vii Prologue: The Puzzling (Alleged) Disappearance of Authority
ix
one
The Fictional Foundations of (Modern) Political Authority
1
t wo
Fictional Authority and the Problem of Constitutional Interpretation
29
t h r e e Our Quasi-Fictional Government
75
f o u r From Political Fictions to “Living with Lies”
123
five
Authority and Faux Authority
157
six
Is Genuine Authority Possible?
189
Epilogue: Authority outside the Cave?
219
Notes 225 Index 269
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PROLOGUE The Puzzling (Alleged) Disappearance of Authority
In the middle of the twentieth century, the political theorist Hannah Arendt made a disconcerting announcement. “[A]uthority has vanished from the modern world,” Arendt declared. “Practically as well as theoretically, we are no longer in a position to know what authority really is.”1 And she added that “[t]he moment we begin to talk and think about authority, it is as though we were caught in a maze of abstractions, metaphors, and figures of speech in which everything can be taken and mistaken for something else, because we have no reality, either in history or in everyday experience, to which we can unanimously appeal.”2 Suppose for a moment that Arendt was correct: Would her surprising news be cause for lamentation, or rather for jubilation? Typically, the invocation of “authority” does not prompt spontaneous rejoicing; it may instead evoke images of arrogant, pretentious people who think they have the right to boss us around. So, if authority has indeed “vanished,” perhaps we should celebrate? “Free at last! Thank God, we are free at last!” Arendt thought otherwise, though. She suggested, ominously if obscurely, that the disappearance of authority amounted to some kind of catastrophe for humanity. The “loss [of authority],” Arendt observed gravely, “is tantamount to the loss of the groundwork of the world.”3 ix
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x Prologue
It is an intriguing metaphor—and a disturbing one. “The loss of the groundwork of the world.” What is “the groundwork of the world”? What would it mean to lose that groundwork? The image elicits an unsettling vision of people with nothing firm to stand on—people lurching and staggering and reeling as they vainly try to plant themselves on some liquid or lava-like surface that shifts and disintegrates beneath their steps. Like children in one of those amusement park exhibits—or maybe “The Flopper” in a famous Cardozo d ecision4— in which the floor is constantly moving, everything is off-kilter, and everyone keeps tumbling down. Except that this time the victims would be not children but all of us, and the spectacle would be grim, not amusing. Modern civilization—lost in the funhouse? Coming from one of the most respected political thinkers of the last century, these are sobering if cryptic words—words deserving of examination and reflection. Because if Arendt was right, understanding how authority somehow “vanished” from the modern world and how that disappearance amounts to the “loss of the groundwork of the world” might offer us a valuable insight into our times, with their distinctive frustrations and dysfunctions. But was Arendt right? Surely there is cause for skepticism. After all, isn’t “authority”— as a word, as a concept, and as an operative reality—a perfectly familiar feature of modern life? Don’t we have authority, or authorities (plural), all around us? Primarily, perhaps, we attribute “authority” to governments and to government officials—and to the laws that such governments and their officials promulgate. And government officials with their teeming hosts of laws and regulations and requirements have hardly vanished; on the contrary, they swarm about us on every side. It might be a huge relief if they would vanish, or at least back off a bit: No such luck! In addition, there are plenty of other nongovernmental figures to whom we ascribe “authority.” Bosses, school principals, parents. Teachers. Coaches. In short, far from having disappeared, authority seems virtually ubiquitous. Beyond its prima facie implausibility, Arendt’s claim also seems paradoxical—because if the claim were correct, we might think, it
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Prologue xi
would be one that she could hardly make, and that we could hardly respond to. If it were actually true that “we no longer have any idea what ‘authority’ is,” as Arendt contended, then saying as much would be like saying “We have no idea what ‘glumph’ is.” To which we might respond, “That’s correct. What on earth is ‘glumph’? What are you even talking about?” But Arendt’s declaration doesn’t seem like that; it seems like a statement that we can understand, discuss, agree or disagree with. How is this possible unless we do have some conception of what authority is? Still, it would be rash to dismiss the considered statements of a respected political theorist too quickly (or after just two or three paragraphs of skeptical reflection). Moreover, Arendt was not alone; other thinkers have sometimes made similar observations. R. B. Friedman reported that the claim “that the very concept of authority has been corrupted or even lost in the modern world” is “an opinion frequently expressed in some of the most well-known discussions of authority in recent years.”5 In our own century, the philosopher Michael White has remarked that “[a]n enduring problem concerning authority for us post-Enlightenment moderns, it seems to me, is that natural authority has largely disappeared from our most common worldviews.”6 Going back in time, the Christian existentialist Soren Kierkegaard lamented that “the concept of authority has been entirely forgotten in our confused age.”7 So the claim that authority has disappeared, with confounding or even catastrophic consequences for us, deserves our attention and our investigation. And in preparing for that investigation, we might break down Arendt’s indictment into three separate claims: First, authority has disappeared from the modern world. Vanished. This claim is counterintuitive because, as we have already noted, it seems that authority is all around us. But of course Arendt was perfectly aware of this fact; she did after all write a much-admired study of totalitarianism (which we will consult in a later chapter).8 So if she and Professor White and Mr. Kierkegaard and others say that “authority has disappeared from the modern world,” it seems they must be asserting that what we typically call “authority” is not really authority. Instead, they imply, what we call “authority” is some kind
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xii Prologue
of imitation or impostor or counterfeit. Faux authority. That is one claim that calls for investigation. Another claim is that the disappearance of authority is a loss for us—even a catastrophic loss. That conclusion is hardly self-evident. There are astute and respectable theorists who agree with Arendt in saying that authority is absent from our world but who contend that we can get along just fine without it, thank you.9 So we will need to consider whether the loss of authority, if that is indeed our situation, is actually a lamentable development, and if so, in what way. A third claim calling for our investigation asserts that we no longer understand what authority even is. This third claim goes beyond the first one: not only is authority missing from the modern world, but the very term or concept has become unintelligible to us. The claim that we no longer understand the meaning of authority is the most elusive of the three. It stands in a complicated, puzzling relation to the other two. In one sense, it seems to reinforce the first claim: the disappearance of authority from the modern world is so complete (or so critics like Arendt assert) that we no longer even understand what the term refers to. That, presumably, is why we might routinely mistake the counterfeits or substitutes that we call “authority” for the genuine article. But the third claim also subtly subverts the first one, and also the second one. If we do not understand what authority is, how can we be sure that the thing has disappeared? And how can we say whether the loss of authority is a misfortune or rather a blessing if we do not even know what it is that we have lost? Its puzzling quality will make investigation of this third claim a tricky but potentially revealing endeavor. So there are three related but separate claims, and we will engage them in the following order. Chapter 1 will be devoted to supporting Arendt’s first claim, at least obliquely. My contention in this chapter will be that political authority in the American legal and political system, and probably in other liberal democracies as well, has a fictional quality. Authority itself is a fiction, perhaps, or at least it is grounded in fictional foundations.
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Prologue xiii
While resonating with Arendt’s claim, this contention is more modest, in two ways. First, my contention addresses only the matter of authority as it is conceived in the American political tradition (and like-minded liberal democracies); it does not deny the possibility that authority might be alive and well in other contexts or in other conceptions. Second, there is—or at least there can be—an important difference between saying that something has “vanished” and saying that it is “fictional” in character. Santa Claus may be a fictional character, but he has hardly vanished. On the contrary, he is very much with us, wielding considerable cultural power. Authority might be like Santa Claus—fictional, yes, but present and powerful (for good or ill) nonetheless. So the contention of chapter 1, even if persuasive, will fall short of corroborating Arendt’s more radical claim that “authority has vanished from the modern world.” We will defer consideration of that more radical claim until later in the book. Before reaching that issue, though, we will first consider whether the disappearance of authority—or, at least, its fictional character—is worrisome or even catastrophic (perhaps even amounting, as Arendt claimed, to the loss of “the groundwork of the world”). Chapters 2 through 4 will address aspects of that question, in different ways. In chapters 2 and 3, I will argue that the fictional character of authority lies at the bottom of many long-standing legal or jurisprudential disputes in the American legal system—disputes about the nature of the union, for example, and about constitutional and statu tory interpretation—and it is what makes those disputes so intractable. Shifting the focus from America to Eastern Europe, chapter 4 will suggest that the fictional character of authority has the potential to lead to the nightmarish condition that Vaclav Havel and others discerned in later Communist countries and that Havel described as “living with lies” (and that some perceive as being replicated in Western societies). We will save the last and most elusive claim—that we no longer understand what “authority” even means—for the last two chapters. I will suggest in chapter 5 that we can appreciate the sense and plausibility of Arendt’s claim by reflecting on and extending a
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xiv Prologue
f amous argument made by a thinker whom many regard as the greatest English-speaking legal philosopher of the twentieth century— the Oxford scholar H. L. A. Hart. Most of what we call “authority,” Hart’s analysis as extended will entail, is not really authority (and not even a fictional version of actual authority). It is something else—the counterfeit of authority, perhaps. Faux authority, if you like. This conclusion, if persuasive, would reenforce Arendt’s contention that “authority has disappeared from the modern world.” Nonetheless, I will suggest in chapter 6 and also in the epilogue that, with effort, we can get a sense of what genuine authority is or would be. That we find the concept so elusive today is, as Arendt suggested, an indication that although the “groundwork of the world” may not have been altogether lost, we have great difficulty in getting our footing on that groundwork. And there is at least one tradition— the Christian tradition—that has for centuries maintained the hope that although the governments and law we live under today may be mere simulations of authority, the day will come in which real authority will present itself. One preliminary clarification may be helpful. We have taken as a starting point and provocation for our inquiry Hannah Arendt’s contention that “authority has vanished from the modern world,” and we will refer to that contention at times as we proceed. But our inquiry will not be primarily exegetical. Given Arendt’s stature and given the intriguing quality of her claim, we would expect that scholars might devote considerable attention to figuring what Arendt meant; and they have.10 Our inquiry will not attempt to cover that ground again. As we have already noted, Arendt was merely one among a number of thinkers who have perceived that in our time the idea of authority seems problematic or profoundly puzzling. Our concern will not be to engage in exposition of the particular diagnosis offered by Hannah Arendt—or Professor White or Soren Kierkegaard or anyone else— but rather to do our own investigation of the puzzling condition they perceived. Why is authority such a difficult matter in our day? Has it disappeared? How could that have happened? And if so, is this cause for lament, even alarm, or rather for rejoicing? These will be our guiding questions.
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Prologue xv
Postscript. Readers who have themselves published books will understand that the publication date listed at the front of a book may bear only a tenuous relationship to the time when the book was actually written. In the present case, this book was largely completed by the fall of 2019. Seven months later, as I begin revisions in the summer of 2020, the world has already changed in ways that could not be anticipated then. Most obviously, who could have imagined the massive alterations in the way life is lived that have been prompted by the COVID-19 pandemic? Millions of people quarantined in their homes, thousands of businesses shut down, professional sports put on hold for who knows (as of when I write) how long? Some of the hypothetical scenarios presented in chapter 3, intended at the time I devised them to be quite fantastic, now seem not at all far-fetched— for example, the possibility that Congress might meet and vote remotely in response to an epidemic. A different unanticipated development has been the massive political reaction to the killing by a Minneapolis police officer of an African American man, George Floyd. The ensuing protests have underscored the fragile nature of political authority. Perhaps the most conspicuous instance to date has been the decision in Seattle to declare a section of the city an autonomous zone in which the police will not enter. As of this writing it is impossible to know how long such protests may last or how deeply they will affect our institutions of authority and law enforcement. Another relevant development is the Supreme Court’s decision in Bostock v. Clayton County—in an almost made-to-order illustration of the implications of the textualist approach to legal interpretation criticized in chapters 2 and 3, the court construed the 1964 Civil Rights Act to prohibit discrimination based on sexual orientation even though the court acknowledged that no one in the enacting Congress intended such a prohibition and that Congress had repeatedly declined to adopt any such prohibition in the years since. And yet another relevant development is the escalation of the “cancel culture” described at the end of chapter 4. In the aggregate, these various unanticipated and disruptive (for good or ill) developments make Hannah Arendt’s description of “the loss of the groundwork of the world”
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xvi Prologue
seem a little less hyperbolic. The developments make some of the questions raised in this book seem more urgent and less academic. In a world in which crisis seems to follow on unexpected crisis, there is no way to know what may happen between this stage of revision and the actual publication of the book. One can only hope. The satisfaction of having one’s argument confirmed by events would hardly compensate for further collapse of “the groundwork of the world.”
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CHAPTER ONE
The Fictional Foundations of (Modern) Political Authority
We saw in the prologue that according to respected political thinkers like Hannah Arendt, “authority has vanished from the modern world.” This claim seems puzzling, though, and prima facie implausible, because it seems obvious that claims of authority confront us on every side. You cannot cross the street or drive to work without encountering a host of regulations and prohibitions promulgated by governments asserting the authority to enact and enforce such laws. You cannot buy a cheeseburger or a tube of toothpaste without paying an increasingly hefty tax imposed by some self-declared governmental authority. You cannot collect a paycheck without having a substantial portion of your hard-earned salary withdrawn in advance, again at the behest of an institution—several of them, actually—claiming the authority to make these extractions. If you are a minor, you are likely confronted with assertions of authority by your parents. If you are a student, you are subject to the authority of your teachers, who (like you) are themselves subject to the higher authority of the principal or the dean. If you are an employee, you deal daily with claims of authority from your boss. If you belong to a baseball team or an orchestra or a platoon of soldiers, 1
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2 Fictions, Lies, and the Authority of Law
you are constantly under the authority—or what surely appears to be authority—of your coach, your director, or your sergeant. In short, every facet of your life and of mine is hemmed and hedged by assertions of authority.1 But what is the nature of this authority? Is it “real” authority or rather, as Arendt implied, some sort of simulation or counterfeit? Where does it come from? What is it based on?
The Consent Account
In the American political system, and in like-minded liberal democracies, there is a standard and official perspective on these questions, at least with respect to political or governmental authority. That answer was put forward in the American Declaration of Independence as a “self-evident truth”—namely, that “Governments . . . deriv[e] their just powers from the consent of the governed.”2 Let us call this “the consent proposition.” The consent proposition has been recited ad infinitum, and it has become part of the bedrock of the American political tradition. Don Herzog observes that “[c]onsent theory has an extraordinarily firm hold on our imagination. It provides perhaps the single most prevalent paradigm structuring our thinking about law, society, morality, and politics.”3 An occasional theorist will soften the requirement slightly, saying that what is needed is not “consent,” exactly, but rather “assent”;4 but the basic idea is the same.5 To be sure, in describing the consent proposition as “self-evident,” the Declaration exaggerated a little, or maybe a lot. In other regimes— communist regimes, for example, or theocratic regimes—very different accounts of authority (or “legitimacy”6) have prevailed. We will encounter some of those accounts later in the book. And even in Western democracies, both theorists and ordinary citizens often find the consent account of authority to be, as John Marshall might have put it, “too extravagant to be maintained.”7 (Our discussion will suggest that these skeptics are right—and also wrong.) Theorists of this more skeptical bent often propose alternative, nonconsensual explanations of how governments may come to have authority over us or
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The Fictional Foundations of (Modern) Political Authority 3
of why we ought to acknowledge at least a prima facie obligation to conform to the rules and commands issued by government. We will consider some of these alternative accounts in due course as well. In the American political tradition, however, and in liberal democratic regimes generally, the consent proposition has dominated. Alexander Meiklejohn asserted that “[g]overnments . . . derive their just powers from the consent of the governed. If that consent be lacking, governments have no just powers.”8 Rogers Smith explained that a feature of “the course of America’s constitutional development” has been an “expanding legal emphasis on consent as the sole source of political legitimacy.”9 Nor is this domination merely an accident. On the contrary, there are understandable reasons why in our tradition, the consent account not only has been but needs to be the official account. Whether it is plausible or not.
The Necessity of Consent
More specifically, in the liberal West a commitment to freedom— and, more specifically, to freedom understood in terms of individual autonomy—has been pervasive. “[W]herever we look,” John Crosby remarks, “we find some variation on the theme of independence, autonomy, belonging to oneself, existing for one’s own sake, living out of one’s interiority, acting through oneself, determining oneself.”10 Gerald Dworkin explains that the “view of the moral agent as necessarily autonomous” is “a philosophical view that is shared by moral philosophers as divergent as Kant, Kierkegaard, Nietzsche, Royce, Hare, Popper, Sartre, and Wolff.”11 Indeed, the commitment to autonomy is sometimes thought to be the defining feature of modernity,12 as well as being a foundational element of liberal democracies. Ekow Yankah observes that “[f]rom the point of view of liberalism, human beings are defined first and foremost by their autonomy or freedom-preserving nature.”13 But this commitment to autonomy is in tension with the very idea of authority.14 And the consent account may seem to offer the only way of reconciling autonomy with authority.
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4 Fictions, Lies, and the Authority of Law
The opposition between autonomy and authority has been a common subject of reflection; one such forceful reflection was put forward by the philosopher Robert Paul Wolff.15 Wolff’s core point can be simply stated. We are, or at least we aspire to be, autonomous beings. Nor is this merely a contingent wish; on the contrary, our moral worth and dignity inhere in that autonomy.16 And “[t]he autonomous man, insofar as he is autonomous, is not subject to the will of another. He may do what another tells him, but not because he has been told to do it.”17 Government and its laws, by contrast, are heteronomous relative to us: they are outside forces ordering us to obey their commands because we have been commanded. And that is a demand that we can never acknowledge without compromising our autonomy. Wolff stated the basic point succinctly: The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the individual and the putative authority of the state. Insofar as a man fulfills his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws.18 On this reasoning, “[a]ll authority is equally illegitimate.”19 To be sure, some laws and legal regimes will be more admirable than others. If we have the good fortune to live under a just and benign government, then we may have excellent reasons for complying with many or most of the laws that such a government enacts or for being what Heidi Hurd approvingly describes as “law-abiding anarchists.”20 What we cannot do, without compromising our autonomy and hence our dignity, is acknowledge that government has authority over us, or a “right to rule” us. There is a powerful and almost axiomatic force to this challenge, and, as Joseph Raz has observed, much modern theorizing about au-
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The Fictional Foundations of (Modern) Political Authority 5
thority can be understood as an attempt to respond to it or deflect it.21 Can “autonomy” and “authority” coexist, or are the two simply antithetical and mutually exclusive, as Wolff argued? It is a difficult question, but one that can help to underscore the distinctive attractiveness of the consent proposition. That is because, far from transgressing the commitment to autonomy, the consent proposition may seem to embrace and build on that commitment. So you are an autonomous agent, yes; but if you yourself voluntarily consent to be governed by, say, Parliament, or by the czar, then the authority of Parliament or the czar does not violate your autonomy, but rather is derived precisely from the exercise of that autonomy. So goes the argument, in any case; we will see later, in chapter 5, that things are more complicated. For now it is enough to say this much—that given the pervasive commitment to autonomy, if there is to be authority at all it seemingly will have to be based on consent. If we are committed to being autonomous agents, how is it possible that we could acknowledge the authority over us of anything or anyone unless we had consented?
Consent as a Fiction
So the consent proposition is attractive, even mandatory, under modern conditions and given the commitment to autonomy. But the proposition also has its notorious difficulties. Amanda Greene remarks that the consent-grounded criteria of voluntarism and contractualism “advance a standard of legitimacy that no society has ever met or could ever hope to meet.”22 The most conspicuous difficulty with the consent proposition, probably, is that if the proposition is correct, then we are seemingly forced to conclude that all or virtually all contemporary governments lack authority. Theorists have discussed this difficulty at length. But we need not become mired in the intricacies here: it will be enough for us to notice the essential difficulty and the inadequacy of the most common and direct ways of deflecting that difficulty. This is well- trodden ground, and we will try to traverse it quickly. We can then consider a more promising and commonsensical way of overcoming
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6 Fictions, Lies, and the Authority of Law
that difficulty—albeit one that raises a different set of intriguing and portentous challenges. The consent proposition tells us, once again, that governments must get their authority from “the consent of the governed.” But as it happens, I am one of “the governed,” and I do not recall ever giving my consent. As far as I’m concerned, me personally, it never happened. Same for you, most likely. Maybe a few of us did give our consent—immigrants who achieved citizenship through an official ceremony of naturalization, for example. But it seems almost certain that the vast majority of people who are citizens or residents of the United States (or Britain, or France, or . . .) never actually consented to the authority of the governments that rule us—not, at least, in the ways or forms that we typically count as manifesting “consent.” Indeed, we were never even afforded an opportunity to give or refuse our consent. Nobody ever sat us down and asked, “Do you consent to be ruled by this government? If so, initial right here, by the X.” What actually happened was quite different: we were born—not through any choice of our own—and almost before we could utter our first wails of protest or squeals of approval, the government (along with our parents, of course, and later our teachers, and others) just started bossing us around, whether we liked it or not.23 And so if governments can gain authority only through the consent of the governed, the stark conclusion promptly follows (or so it seems): none of these governments actually possess authority. Leslie Green remarks that “consent theory may offer a correct conception of what it would be for the authority of states to be justified while at the same time offering an explanation of why it is not. Just as the best conception of free will may support the conclusion that we do not have it, the best conception of authority may show that it does not exist.”24 The consent proposition is closely tied in modern political thought to the idea of a “social contract.” We—or was it our ancestors? or has the distinction somehow been effaced?—once lived in a “state of nature” without government or law. But whether life in this condition was relatively idyllic (as Locke portrayed it) or “nasty, brutish, and short” (as in Hobbes’s depiction),25 it had its inconveniences.
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The Fictional Foundations of (Modern) Political Authority 7
And so we contracted with each other to relinquish some of our natural freedom in order to form a government. This contract conveyed and embodied our consent; and it is the basis of the government’s authority over us. In one version or another, these notions—of the state of nature, or the prepolitical state, and the social contract—pervade modern political thought, showing up in different versions in the thinking of luminaries like Locke, Hobbes, Rousseau, and (more recently) Rawls.26 Kent Greenawalt thus explains that “[f]or most of the history of liberal democracies, the dominant theory about why citizens are obligated to obey the law has been social contract.”27 The problems with the idea of a social contract, however, are once again notorious. There are two main difficulties. First, the contract is a blatant fiction or, as Ronald Dworkin put it, a “fantasy.”28 As a matter of actual history, there never was a social contract. It is imaginable, just barely, that such a contract could have been formed. But it wasn’t. Thus, during the English civil wars of the mid-seventeenth century, when modern ideas of popular sovereignty were in their nascent stage, one group—the so-called Levelers—took the notion of consent and contract seriously enough to write up an actual “Agreement of the People” and present it to Parliament. The agreement, as Edmund Morgan explains, was supposed to receive “the signature of every man, woman, and child to be governed and protected under it.”29 Parliament, which purported to exercise authority based on its supposed representation of the people, could hardly object to this proposal, could it? Well, actually, yes, it could. “The response of the sitting Parliament to the proposal,” Morgan relates, “was as might have been expected: the Agreement of the People, the House of Commons proclaimed, was seditious, ‘destructive to the Being of Par liaments, and Fundamental Government of the kingdom.’”30 And so, alas, the contract was never signed. The Levelers’ futile campaign is useful in showing what genuine consent to authority might look like—and in showing that our actual governments are not based on any such thing. But suppose the Agreement of the People had been implemented. Or, more generally, suppose our distant ancestors had entered into an actual social contract
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8 Fictions, Lies, and the Authority of Law
of some kind. Even so, it is not at all clear how and why their agreement would be binding on you and me. Maybe they—our ancestors— consented to authority, but they are long since dead. They are not “the governed”; we are. And the fact would remain that we never did consent. This is not to say that hypothetical thought experiments about what people would be willing to contract for in some imaginary state of nature or “original position” might not be illuminating, as in John Rawls’s extensive and influential theorizing. But as a basis for actual governmental authority, the idea just doesn’t work; it doesn’t work because it isn’t true. These conclusions are quite obvious, but they are also inconvenient. (And perhaps also, in a certain sense, sophomoric: we will see later that in one perspective, arguments such as “I never consented” or “There never actually was any social contract” may be both plainly correct on the level of mundane fact and also, in a loftier sense, misguided and obtuse.) The conclusions are sufficiently inconvenient that both ordinary citizens and political theorists often look for ways to avoid them. One common expedient suggests that we did consent to our respective governments after all—not in so many words, perhaps, but by implication. And how did we give this implicit consent? Well, by not choosing to leave the country, maybe, when at least in theory we could do that. Or by accepting benefits from the government (such as police protection). Or by voting, paying taxes,31 or otherwise participating in public life.32 For some situations, implied consent accounts can be quite persuasive. You decide to join the football team, maybe, or the orchestra: you will be taken to have impliedly consented to the authority of the coach or of the director, even if you never explicitly said so. This conclusion will seem quite plausible, for a couple of reasons. First, you actually did choose to join the team or the orchestra. There was a time when you did not belong to these groups, and then, as of some identifiable date and as a result of your uncoerced decision, you became a member. Second, a commitment to follow the coach or the director is a well-understood feature of being a football player or an orchestra
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The Fictional Foundations of (Modern) Political Authority 9
musician. That’s just part of what it means to be on a team or in an orchestra: everyone knows this.33 Conversely, it is hard to say that you ever freely chose to join the society ruled by the particular government that purports to exercise authority over you.34 Most likely, you just somehow found yourself there, not through any choice of yours.35 So the contention that you gave “implied consent” seems to rest on a fiction just as much as the “social contract” does. Indeed, in other contexts where we care about consent, these sorts of claims about “implied consent” would seem laughably inadequate, or even offensive. It is a common assumption today, for example, that sexual relations among adults are presumptively permissible, at least so far as the state is concerned, so long as they are consensual. Conversely, sexual relations inflicted on someone without their consent constitute a serious wrong and injustice. So suppose some frat boys are accused of sexual aggression against a young woman who became inebriated during a fraternity party. They defend by saying that the sex was consensual. And how did the woman consent? Well, . . . by voluntarily coming to a party where she knew such conduct was likely to occur, . . . or maybe by choosing to dress in an alluring way with the knowledge that this attire would be enticing to frat boys, . . . or by not leaving the party when things began to get rowdy, . . . or by drinking to the point of vulnerability with the knowledge of what might follow. It may well be true that the woman did these things, and also that such conduct involved both more genuine choice on her part and more awareness of predictable consequences than is present in a citizen’s “decision” to live in the country where he or she was born or to accept police protection. And yet far from exonerating the frat boys, these claims about implied consent will be viewed as additional outrages—as insults both to the victim’s dignity and to our intelligence. However knowing and deliberate, this sort of conduct just does not qualify as “consent” to be sexually assaulted. So if we reach a contrary conclusion in the context of political authority, it seems that we are being driven by necessity to indulge what is at bottom a fiction. Rights to emigrate, to vote, and to participate in the political process may be valuable endowments, and they will
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10 Fictions, Lies, and the Authority of Law
also turn out to be relevant, in a more roundabout way, to the question of authority. But they do not make for genuine “consent.” A different expedient resorts not to “implied consent” but to something like “constructive consent” or “imputed consent”—notions much exploited in some contemporary moral and political theorizing. Whereas “implied consent” suggests that someone actually did consent to something (albeit not explicitly), “constructive consent” treats “what a reasonable person would consent to” as the equivalent of consent. But then the very notion of constructive consent (like other constructive entities in law—constructive notice, or constructive possession) quietly acknowledges that the “consent” that is being invoked to justify something is not real: it is something that is imagined and ascribed, not something that actually happened.36 So suppose I have the power to force you to do something that I believe (perhaps correctly) will be for your benefit. You have fallen into a decadent, drunken lethargy, maybe, and I have the power to force you to lay off the liquor or get up off the sofa and take a job or go to school. Let’s say I exercise this power, and you indignantly protest that I’m not the boss of you. And suppose I respond that, yes, I am the boss of you—on the basis of your consent; and when you insist that you never did consent, I explain, “Well, a reasonable person in your pathetic condition would consent; and so if you were reasonable you would consent; and that’s basically the same as consenting.” The claim that a reasonable person would consent to my authority is surely contestable. But even if we stipulate to the correctness of that claim, it simply doesn’t follow that you consented. The whole point of insisting on consent is to ensure that you and I, not somebody else, and certainly not some fictional “reasonable person,” are the ones who get to do the consenting. “Constructive consent” thus amounts to a false facade of consent invoked in support of an exercise of power that is justified, if at all, on some other ground.37 That theorists would resort to dressing up their fundamentally nonconsensual ethical claims in the costume of constructive consent is testimony to the enormous power that the ideas of autonomy and consent wield in our modern political culture.
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The Fictional Foundations of (Modern) Political Authority 11
Even so, constructive consent, to put the point bluntly, is simply not consent.38 (If this dismissal seems peremptory, let me say that the considerations supporting “constructive consent,” like those supporting “implied consent,” will turn out to be relevant in a more indirect way to the question of authority. But not because they actually supply the consent demanded by the consent proposition.) Other theorists propose different accounts of authority. They may argue, for example, that a person who resides under the jurisdiction of a governmental regime and receives benefits from it—police protection, for example—has an obligation to respect the laws of that regime. Or they propose that we have “associative obligations” to our fellow participants in a common venture. Theorists have examined these theories in great detail.39 Although we will in due course look at several of these theories a bit more closely, for present purposes we need not descend into the details. Instead, it will be enough for now to take note of a dilemma faced by such theories. Theories based on conferred benefits or gratitude or associative obligations may be taken either as accepting and attempting to satisfy the consent proposition or, instead, as offering nonconsensual alternatives to that proposition. But if they are offered as rationalizations for concluding that we have implicitly consented to the government’s authority, such theories are compellingly unpersuasive. Once again, we are not given any realistic choice to refuse government’s authority, along with the putative benefits it provides, or to opt out of the common venture. Just try moving to the desert or the forest: the long arm of the government will still reach you. Or imagine that someone kidnaps you, confines you in a locked cell, but also offers you food—or maybe even a choice between a grim gruel and nourishing and delicious food. If you eat the food, or if you choose the nourishing and tasty food, could you plausibly be said to have consented to your confinement? So it seems these theories are better understood as alternatives to the consent proposition. Thus construed, the theories may or may not be persuasive: we need not reach any verdict here. If we think the theories are persuasive, then they may succeed in giving us reasons to obey laws and commands issued by governments. We might even
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12 Fictions, Lies, and the Authority of Law
c onclude that they succeed in demonstrating the existence of something that we might choose to call “authority.” (Whether that would be the apt conclusion, or the apt terminology, is a question we will look at more closely later, in chapter 5.) But they still do not serve to confirm the consent proposition or to extricate the dominant account of authority from the category of “fiction.” Consider a more extreme example. Suppose someone says, “Although it is true that few of us ever consented to this government, the government has authority nonetheless—and we have an obligation to respect and obey it—because God has so ordained. Check out St. Paul’s Epistle to the Romans, chapter 13.” Just as a historical matter, this sort of theological rationale has often been invoked to support governmental authority, and even today there are surely devout citizens who accept the rationale: I myself know any number of them. But even if we stipulate for purposes of discussion that the theological rationale is correct, and thus that it gives us a reason to respect the authority of government, it still would not confirm the received, official account—which, once again, is based on . . . consent. Governmental authority as claimed by the government and as commonly understood in the American political tradition would still be based on a fiction. Alright, but then how unsettling is this conclusion? Is there anything disturbing in the conclusion? Up to this point, we have been saying two things as if they were synonymous. We have said that if the consent proposition is correct, then government lacks authority. We have also said that if the consent proposition is correct, government’s authority is based on a fiction. But are these claims actually synonymous? Does saying that authority is based on a fiction entail that the authority itself is . . . what? Nonexistent? Illusory? Fraudulent? Can authority be grounded in a fiction and nonetheless be real authority? Maybe it can. To see how, consider a different account of authority—one that purports to dispense with the need for “the consent of the governed” but that may have the inadvertent effect of revising and rehabilitating the consent proposition or of making “fictional consent” a sufficient basis for actual authority.
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The Fictional Foundations of (Modern) Political Authority 13
Authority and Coordination
This alternative account can be called “the coordination account” of authority. A version of this account is well articulated by the Oxford philosopher John Finnis. Finnis’s account occurs as part of his “natural law” account of law, which might lead one to expect something starry-eyed and medieval. But in fact the theory is closer to being brutally realistic and is not dependent on any sort of medieval or theistic premises. Finnis observes that in a complex and pluralistic society in which a variety of agents pursue a vast array of different goals and agendas, it is to everyone’s benefit to have someone or some institution that can issue directives and rules by which people can coordinate their projects and activities with those of other people. In part the need is for someone or some institution that can maintain order and punish the violent and the antisocial. But the requirement is hardly limited to that basic law-and-order function: on the contrary, even if the people in a society were all as amiable as angels, the need for coordination would persist, and indeed would likely increase. People would still want to work together to organize business enterprises, charitable foundations, birdwatching societies, athletic associations, opera companies; and they would need coordinating rules in order to pursue these common projects. “[T]he greater the intelligence and skill of a group’s members,” Finnis observes, “and the greater their commitment and dedication to common purposes and common good . . . , the more authority and regulation may be required, to enable that group to achieve its common purpose, common good.”40 But the necessary coordinating rules and directives do not just appear out of nowhere; they must come from someplace—or, usually, from someone. So if there is a person or persons with the power and propensity to issue such coordinating rules and have them obeyed, their very ability to provide such coordination gives this person or persons authority. Their authority derives from “the sheer fact of [their] effectiveness” in satisfying the need for coordination—from “[t]he fact that the say-so of [these people] will in fact be, by and large, complied with and acted upon.”41
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14 Fictions, Lies, and the Authority of Law
Authority is thus not dependent, Finnis argues, on “[c]onsent, transmission, contract, custom.”42 Neither does it depend on virtue in the rulers: authority can exist in “the very frequent case where bad men establish their rulership over a realm.”43 All that is needed, once again, is “effectiveness”—sheer power—accompanied by the willingness to use that power to promote order and social coordination. Finnis criticizes “[t]he tendency of political thinkers to utter legalistic fictions about the original location of authority.”44 And it is true that by contrast to other accounts that exude a sort of fictional quality (with exotic and imaginary “states of nature,” “original position[s],” “veil[s] of ignorance,” and “social contracts”), the coordination account seems grittily realistic. Thus, if we look at our actual real-world situations and ask how it is (not in theory but in actual practice) that governments manage to claim and exercise authority over us, isn’t something like the coordination account the most eligible explanation? As citizens, we may not recall ever actually consenting to be ruled by our governments—or even being given a genuine opportunity to do so. And we may not regard the rulers as possessed of extraordinary (or even ordinary) virtue or wisdom. Even so, we do need someone or some institution to enforce and maintain order and to provide and enforce the rules by which we can live and interact with each other. That need is a fact, not a fiction. And the government provides these essential goods: that is why we accept that we should support the government and its laws. Isn’t it? Something along these lines?
Coordination and (Fictional) Consent
The coordination account thus seems both prima facie plausible and refreshingly realistic. Pretty much fiction-free. On first inspection anyway. But then a question arises. Granted that the government has authority if it has effective power to provide social coordination, how does the government acquire that effective power? The answer may be complicated and may vary from one government to another. One source of governmental power—perhaps the
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